Because the jury found defendant guilty, we consider the facts in the light
most favorable to the state. State v. Langley, 314 Or 247, 249, 839 P2d 692 (1992). At
the time of the events leading to the criminal charges against defendant, defendant knew
that Ward, a long-time associate of his, faced criminal charges for delivery of a controlled
substance. Those charges were brought after Cutsforth, a mutual acquaintance of Ward
and defendant, conducted a controlled buy of methamphetamine from Ward. Defendant,
Ward, and Cutsforth are all long-time residents of Prineville.

Ward was arrested and charged, and the state subpoenaed Cutsforth to
testify in the criminal proceeding. Early one morning, shortly after Cutsforth received the
subpoena, defendant stopped by the hotel room where Cutsforth lived. After Cutsforth
and defendant talked and defendant left, Cutsforth telephoned the sheriff's officer whom
she knew from the controlled buy transaction. She told him that defendant had shown up
and scared her, and that the visit was "repercussion" for the controlled drug buy.
Although Cutsforth was frightened by defendant's visit, she ultimately testified at Ward's
trial.

The state charged defendant with unlawfully attempting to induce Cutsforth
not to testify against Ward. Defendant was charged under ORS 162.285(1) (a) and (b)
with one count of attempting to induce a witness to unlawfully withhold testimony and
one count of attempting to induce a witness to be absent from an official proceeding to
which she was legally summoned. ORS 162.285 provides in part:

"(1) A person commits the crime of tampering with a witness if:

"(a) The person knowingly induces or attempts to induce a witness or
a person the person believes may be called as a witness in any official
proceeding to offer false testimony or unlawfully withhold any testimony;
or

"(b) The person knowingly induces or attempts to induce a witness to
be absent from any official proceeding to which the person has been legally
summoned."

Cutsforth then answered the prosecutor's question, testifying that she was afraid of
defendant "because of rumors. Because of a few other associates of mine. That he was
involved in a few murders here in town."

Defendant also testified. He admitted to a criminal record that included
convictions for possession of a controlled substance in 1990 and 1996; for theft in 1995
and 1996; and for attempted assault in 2001. He testified that the jury should not believe
anything he said because "I am not a choir boy," that he had been guilty of a crime most
of the times that he had been arrested, and that he had served four prison sentences. In
answer to a question about how he was employed, defendant responded, "[M]ost of the
time I am a criminal."

In his trial testimony, defendant described a different version of his
interaction with Cutsforth. He visited her hotel room by chance because he saw her
father's car in the hotel parking lot as he walked to a friend's house. Cutsforth told him
that she was unhappy with the police for allowing her name to be "on the street" in
connection with Ward's case. She asked defendant what she could do to avoid testifying,
and she said that she might "split town." Defendant responded to her concerns by
warning her that she could face contempt of court and jail time if she ignored the
subpoena. He also testified that he did not threaten Cutsforth, did not imply that she
would be hurt if she testified, and did not tell her to avoid going to court. Nonetheless,
the jury convicted defendant of both counts of witness tampering.

OEC 401 defines relevant evidence to be "evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence." The rule
establishes a "very low threshold" for the proper admission of evidence. State v.
Hampton, 317 Or 251, 255 n 7, 855 P2d 621 (1993). To be relevant,

"[t]he proposed inference need not be necessary, or even the most probable
inference; the evidence need not be sufficient in and of itself. Evidence
comes in item by item, and every witness does not have to hit a home run!"

Id. at 255 n 8 (internal quotation marks and citation omitted). Furthermore, "evidence
may still be relevant even though it [i]s only an intermediate fact requiring another
inference or two." Id. at 255 (emphasis in original). A trial court's determination of
relevance under OEC 401 can yield only one correct answer: Evidence is either relevant
or it is irrelevant. Titus, 328 Or at 481. Irrelevant evidence is inadmissible. OEC 402.

First, we do not see that this case presents a question of conditional
relevance. As the Supreme Court has said, in general, relevant evidence "need not be
sufficient in and of itself" and it "comes in item by item." Hampton, 317 Or at 255.
Defendant's argument as to conditional relevance fails in part because of his incorrect
contention that there was no other evidence to suggest that defendant had used his
reputation to induce Cutsforth not to testify. Cutsforth had known defendant for about a
decade, during which time he was convicted of a violent crime (the attempted assault in
2001) and served prison sentences. Defendant himself testified that he was "not a choir
boy" and that he generally earned his livelihood as a criminal. All of this was other
evidence permitting inferences that defendant's reputation was not good, that his
reputation was known to Cutsforth and to himself, and that his reputation influenced
Cutsforth's reaction to his visit.

More significantly, defendant does not cogently identify a necessary factual
condition that the state first had to fulfill to support the theory that defendant used his
reputation to induce Cutsforth. "Conditional relevancy means a situation where one fact
is relevant only if another fact is proven." State v. McNeely, 330 Or 457, 462 n 5, 8 P3d
212, cert den, 531 US 1055 (2000) (citation omitted). Here, the state's case relied on the
logic of reasonable inferences rather than a prerequisite condition of fact and, with
respect to relevance, "the proposed inference need not be necessary, or even the most
probable inference." Hampton, 317 Or at 255.

We next consider defendant's primary argument, namely, that Cutsforth's
statement about the reason for her fear was irrelevant because an intent to induce fear in
the witness is not an element of the crime of witness tampering. However, it is well
settled that, to be relevant, the evidence under consideration by the court and the fact that
it makes more or less probable may both be intermediate facts. See Hampton, 317 Or at
255 (stating principle that relevant evidence may require another inference or two).

Here, an explanation to support the reasonableness of Cutsforth's reaction to
defendant's visit and to what he said to her exceeded the necessary threshold of "having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable." OEC 401 (emphasis added). First, the state
was required to prove that defendant "attempt[ed] to induce" the witness, as ORS 162.285
states. An attempt to induce may be carried out by instilling fear or attempting to instill
fear in the witness. On that theory, Cutsforth's reason to be fearful as a result of a single
potentially innocuous conversation between herself and defendant would have a tendency
to make it more probable that defendant had sought to induce Cutsforth not to testify.
Second, the disparities in Cutsforth's and defendant's testimony created an issue of
credibility for the jury, which had to decide whether to believe Cutsforth or defendant.
The witness and defendant each simply put their own versions of the conversation in the
other's mouth. Both were impeachable given their backgrounds.

The state's effort to show why Cutsforth experienced a fearful reaction was
relevant both to the jury's necessary determination of her credibility and to the theory that
defendant had used his presence and reputation to help induce fear in Cutsforth and
thereby to discourage her from testifying. Evidence is relevant so long as the inference
that the proponent of the evidence desires the factfinder to make is reasonable. Hampton,
317 Or at 255. Other evidence related to Cutsforth's statement included the undisputed
facts that she knew that Ward and defendant were associates and that she did not expect
defendant's visit, which occurred at an early morning hour when she was alone in her
hotel room. Those facts, taken together with Cutsforth's reason to fear defendant based
on rumors about his reputation, could permit the jury reasonably to infer that Cutsforth
credibly interpreted defendant's visit to be "repercussion" for her assistance to authorities
and that defendant did in fact attempt to induce Cutsforth to withhold testimony or not to
appear at trial. The accumulation of the testimony was a classic instance of evidence that
"comes in item by item." See Hampton, 317 Or at 255.

Furthermore, in this case, Cutsforth's testimony was relevant to prove the
mens rea element of "knowingly" by reasonable inference. See ORS 162.285(1)(a) and
(b). Cutsforth's statement of how and what she knew about defendant's reputation,
combined with defendant's own testimony that he routinely worked in criminal pursuits,
had a tendency to support the jury's reasonable inference that defendant knew that
Cutsforth had reason to fear him. In turn, that permitted the jury's reasonable inference
that defendant knowingly attempted to use his reputation to instill fear in Cutsforth to
induce her to withhold testimony or to not appear.

Finally, we briefly address defendant's contention that Cutsforth's statement
about her reason to be fearful was irrelevant because she did in fact testify against Ward.
Defendant concedes in his primary argument that the crime of attempting to tamper with a
witness does not require that a person either induce or attempt to induce fear in the
witness. The crime requires that a person attempt to induce a witness to modify her
behavior, that is, to decide not to testify or to be absent from a proceeding. ORS 162.285.
As we have observed, a witness's inducement to modify her behavior may be instilled by
fear. For the many reasons that we have discussed above, Cutsforth's explanation of why
she was fearful was relevant. Nothing about the nature of proving that defendant tried to
commit witness tampering made Cutsforth's statement irrelevant merely because that
attempt to tamper was unsuccessful.

Cutsforth's testimony about a reason for her fearful state of mind was
logically relevant because it had a tendency to make the existence of facts of consequence
to the determination of the action, that is, the outcome of defendant's trial, more probable.
The trial court did not err in admitting the witness's testimony over the relevance
objection.

Affirmed.

1. The trial court relied on the hearsay exception found in OEC 803(3), which
provides in part:

"The following are not excluded [as hearsay], even though
the declarant is available as a witness:

"* * * * *

"(3) A statement of the declarant's then existing state of mind, emotion,
sensation or physical condition, such as intent, plan, motive, design, mental
feeling, pain or bodily health * * *."

"When the relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject to, the introduction of
evidence sufficient to support a finding of the fulfillment of the condition."